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Kelly v. State

United States District Court, D. New Jersey

November 1, 2018

EUGENE I. KELLY, Petitioner,
STATE OF NEW JERSEY, et al. Respondents.

          Eugene I. Kelly Petitioner Pro se.

          Mario C. Formica, Esq. Atlantic County Prosecutor's Office' Counsel for Respondents.


          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Eugene I. Kelly (“Petitioner”), a prisoner formerly incarcerated at the Bayside State Prison and presently on parole[1]has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). ECF No. 1. By order of Court, Respondents filed an Answer to the Petition (the “Answer”). ECF No. 14. Petitioner then filed a reply to the Answer (the “Reply”). ECF No. 18. The Petition is ripe for disposition. For the reasons stated below, the Petition will be denied.

         I. BACKGROUND

         On March 26, 2007, Officer Mark Gorman was conducting routine patrol in a marked police vehicle in Pleasantville, New Jersey. ECF No. 14-10 at 63-64, 68, 71 (trial transcript). As Officer Gorman approached a red light on Washington Avenue around 2:20 a.m., he saw Petitioner talking on a cellular telephone while walking and swaying back and forth on the sidewalk. Id. at 64, 69, 70. Petitioner looked at Officer Gorman, pointed to his cellular telephone, and said in a slurred voice, “I'm on my phone. Just on the phone.” Id. at 70-71. Officer Gorman did not observe anyone else on the sidewalk or street at that time. Id. at 144, 169.

         Officer Gorman was concerned for Petitioner's safety because he believed that Petitioner was intoxicated. Id. at 71-72. He turned his patrol car around to check on Petitioner's well-being. Id. at 72. As Officer Gorman went to exit his vehicle, Petitioner turned around and began to walk in the opposite direction. Id. at 73. Officer Gorman said to Petitioner, “Yo, where are you going? Come here . . . I want to talk to you.” Id. at 73. Petitioner stated, “Why are you harassing me? . . . I'm not doing anything wrong. I'm just waiting for a ride.” Id. Officer Gorman asked Petitioner where he was going, and Petitioner said, “Over there” and, after some back and forth, stated that he was going to get cigarettes. Id. at 74-75. Officer Gorman did not believe that any store within about three miles was selling cigarettes at the time of the night.[2] Id. at 76. At this point, Officers Mark Porter and Robert D'Arcangelo arrived. Id.

         Officer Gorman asked Petitioner for identification, to which Petitioner responded, “Why are you doing this?” Id. at 77. After asking the question again three times, Petitioner said, “yes, ” and motioned towards his pocket. Id. at 78, 106. Officer Gorman ordered Petitioner to turn around, to put his hands on top of his head, and to interlock his fingers. Id. at 78-79. Petitioner did not comply, and Officer Gorman asked him if “he had anything on him that would hurt me, ” to which Petitioner responded, “No.” Id. at 80.

         As Officer Gorman positioned Petitioner for a pat down for weapons, Officer D'Arcangelo saw a gun in Petitioner's waistband and screamed, “gun.” Id. at 80-81, 137. He then grabbed the gun, a loaded .22 caliber handgun, while the other officers secured Petitioner, who stated, “I need that gun for my protection” or “I need it for my protection.” Id. at 82, 142, 165. Petitioner was then arrested. None of the officers involved in the incident saw any other person or vehicle during their interaction with Petitioner.[3] Id. at 69-71, 144, 168.

         After Petitioner's arrest,

a grand jury sitting in Atlantic County returned an indictment charging defendant Eugene I. Kelly with third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of hollow-point bullets, N.S.J.A 2C:39-3(f); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7.
After a motion to suppress was denied, Kelly entered into a plea agreement whereby he pled guilty to one count of third-degree unlawful possession of a handgun in satisfaction of all charges. In return, the State agreed to recommend a sentence not to exceed five years and to dismiss counts two and three of the indictment. Kelly also agreed to waive his right to appeal pursuant to Rule 3:9-3(d).
Prior to his sentencing, Kelly moved pro se to withdraw his guilty plea. Judge Bernard E. DeLury, Jr., denied Kelly's motion and informed him that, as part of the plea bargain, he waived his right to appeal, and if he decided to appeal, “the State can withdraw from this guilty plea pursuant to the rule and then reinstate the dismissed charges against you and proceed along the prosecution's path to trial.” Kelly indicated that he understood. Judge DeLury then imposed the agreed-upon five-year term in accordance with the plea agreement.
Kelly then filed a pro se notice of appeal, and the State moved to annul the plea agreement. Judge DeLury granted the State's motion, vacated Kelly's conviction, and restored all charges. Kelly then withdrew his appeal and moved for reconsideration of his motion to suppress, which was denied.

New Jersey v. Kelly, A-0708-13T1 (N.J. App. Div. April 15, 2015) (per curiam). During the initial proceedings, the suppression hearing, and plea negotiations, Petitioner was represented by Eric Shenkus of the Public Defender's Office. Mr. Shenkus withdrew as counsel and was replaced by Jill R. Cohen, Esq., who represented Petitioner from pre-trial motions through trial.

         The matter proceeded to trial on May 19, 2009, and Petitioner was convicted of second-degree possession of a weapon by a convicted person in violation of N.J. Stat. Ann. 2C:39-7b.[4] ECF No. 14-10 at 300. After trial, Judge DeLury granted the State's motion to impose an extended term and sentenced Kelly to a sixteen-year term with an eight-year minimum term. New Jersey v. Kelly, A-0708-13T1 (N.J. App. Div. April 15, 2015). Kelly appealed, and the Appellate Division affirmed. State v. Kelly, No. A-1096-09 (App. Div. Jan. 31, 2012). The Supreme Court of New Jersey denied certification. 210 N.J. 480 (2012).

         Kelly then filed pro se a petition for post-conviction relief (PCR). See ECF No. 14-19. Petitioner argued, inter alia, that his trial counsel was ineffective for failing to ask Officer Gorman certain questions on cross-examination at trial about Petitioner's alleged intoxication. ECF No. 14-21 at 6. After the appointment of counsel and the submission of briefs, Judge DeLury heard oral argument.

         On April 3, 2013, Judge DeLury filed a sixteen-page decision denying Kelly's petition without a hearing. See ECF No. 14-21. He determined that Kelly's arguments were procedurally barred under N.J. Rule 3:22-5, because they were “identical to those raised on appeal.” The judge further found that, even if Rule 3:22-5 were not applied, Kelly had not established a prima facie case for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Relying on Strickland, Judge DeLury determined that “it cannot be said that Petitioner's counsel did not act reasonably when [s]he chose to question Officer Gorman in the manner in which [s]he did.” ECF No. 14-21 at 14.

         Petitioner appealed the denial of his PCR petition to the Appellate Division, which affirmed on the basis of Judge DeLury's decision. State v. Kelly, 2015 WL 1649249 (N.J. App. Div. April 15, 2015).

         On June 11, 2015, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254. In it, Petitioner raises an ineffective assistance of counsel claim, a Fourth Amendment claim, and a due process claim. See ECF No. 1. The Court screened the Petition and allowed the ineffective assistance of counsel and due process claims to proceed.[5] See ECF Nos. 8 (opinion) and 9 (order). Petitioner argues that his trial counsel was ineffective for the following reasons:[6]

• Trial counsel failed to show the jury the jacket he was wearing at the time of the incident “so they could see it was impossible to see a gun in plain view sight so big and long as it was.”
• Trial counsel failed to call a taxi cab service owner as a witness to testify that Petitioner was waiting for a taxi cab.
• Trial counsel failed to cross-examine Officer Gorman as to whether he smelled alcohol on Petitioner; and
• Trial counsel failed to ask why the police dispatch report did to mention an intoxicated person.

         ECF No. 1 at 6. Petitioner also asserts a violation of his right to due process in that Officer Gorman's testimony at the grand jury differed from his testimony given at the suppression motion hearing regarding the pat down of Petitioner, i.e. that Officer Gorman committed perjury. ECF No. 1 at 8.

         II. Standard of Review

         A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the fact or duration of one's confinement because the petitioner is in custody in violation of the Constitution or the laws of the United States. See 28 U.S.C. § 2254(a); Pinholster, 563 U.S. at 181; Preiser v. Rodriquez, 411 U.S. 475, 498-99 (1973). A habeas petitioner bears the burden of establishing his entitlement to relief for each claim presented in the petition. See Harrington v. Richter, 562 U.S. 86, 98 (2011).

         The standard used in reviewing habeas claims under § 2254 depends on whether those claims have been adjudicated on the merits by the state court. If they have not been adjudicated on the merits, the Court reviews de novo both legal questions and mixed factual and legal questions. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). If the state court adjudicated the claim on the merits, then 2254(d) limits the review of the state court's decision as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding . . . .

28 U.S.C. § 2254(d). If a claim has been adjudicated on the merits in state court, [7] this Court “has no authority to issue the writ of habeas corpus unless the [state court's] decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Parker v. Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)).

         A court begins the analysis under § 2254(d)(1) by determining the relevant law clearly established by the Supreme Court. See Yarborough v. Alvarado, 541 U.S. 652, 660 (2004). Clearly established law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A court must look for “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court,' [and] therefore cannot form the basis for habeas relief under AEDPA.” Parker, 567 U.S. at 48-49 (quoting 28 U.S.C. § 2254(d)(1)).

         A decision is “contrary to” a Supreme Court holding within 28 U.S.C. § 2254(d)(1), if the state court applies a rule that “contradicts the governing law set forth in [the Supreme Court's] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different result.]” Williams, 529 U.S. at 405-06. Under the “‘unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[A]n unreasonable application of federal law, ” however, “is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. At 410).

         III. Discussion

         A. ...

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